Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of a Fundamental Change, each holder of Series A Preference Shares shall have the right to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either (i) cash in an amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; or (ii) the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Date.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, each holder of Series A Preference Shares the Holder shall have the right right, at its option, to require the Company Borrower to repurchase, subject to compliance with Section 42A repurchase for cash all or any portion of the Companies Xxx 0000 Notes, on the date (the “Fundamental Change Repurchase Date”) specified by the Borrower that is not less than twenty (20) Business Day or more than thirty-five (35) Business Day following the date of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, Fundamental Change Borrower Notice at such holder’s election, either (i) cash in an amount a repurchase price equal to 101110% of the Stated Value of such Series A Preference Shares Principal Amount, plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) accrued and unpaid interest to, but excluding, the Repurchase Date; or (ii) the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after (the Record Date for “Fundamental Change Repurchase Price”).
(b) Repurchases under this Section 6 shall be made, at the option of the Holder, upon:
(i) delivery to the Borrower of a Dividend and duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Annex C hereto on or before the close of business on the Business Day immediately following Dividend Payment Date and Dividends have been declared preceding the Fundamental Change Repurchase Date; and
(ii) if the entire remaining Principal Amount of this Note is being repurchased, delivery of this Note to the Borrower at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for such Dividend Payment Date, then (x) on such Dividend Payment Datetransfer), such Dividend will be paid delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. Notwithstanding anything herein to the contrary, the Holder shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) Business Day immediately preceding the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Fundamental Change Repurchase Date that is on or after by delivery of a written notice of withdrawal to the Record Date for a Dividend and on Borrower in accordance with Section 6(c).
(c) On or before the immediately following Dividend Payment Date unless twentieth (20th) Business Day after the Company shall have declared and set aside the full amount occurrence of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company Borrower shall send notice (in the manner set forth in Section 11) provide to the holders of record of Series A Preference Shares stating (1) that Holder a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date notice (the “Repurchase DateFundamental Change Borrower Notice”), which will be specified in such notice and must be a Business Day ) of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders occurrence of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including effective date of the place or places where certificates for such shares are to be surrendered for payment Fundamental Change and of the repurchase price. Any notice mailed right at the option of the Holder arising as provided in this subsection shall be conclusively presumed to have been duly given, whether or not a result thereof specifying the holder receives such notice. To tender any Series A Preference Shares for following: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which the Holder may exercise the repurchase right pursuant to this Section 8(c6; (iv) the Fundamental Change Repurchase Price; and (v) the Fundamental Change Repurchase Date. No failure of the Borrower to give the foregoing notice and no defect therein shall limit the Holder’s repurchase rights or affect the validity of the proceedings for the repurchase of this Note pursuant to this Section 6.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Borrower on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Borrower in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(e) To the extent that, as a result of a change in law occurring after the first date on which this Note is issued, the holder provisions of any applicable securities laws or regulations conflict with the provisions of this Note relating to the Borrower’s obligations to purchase the Notes upon a Fundamental Change, the Borrower shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Note by virtue of such Series conflict.
(f) A Preference Shares must tender such shares Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Company no later than Borrower at any time prior to the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date, specifying the Principal Amount with respect to which such notice of withdrawal is being submitted, and the Principal Amount, if any, that remains subject to the original Fundamental Change Repurchase Notice.
(g) The Borrower will set aside, segregate and hold in trust on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money, in immediately available funds, sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of Notes, payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the Fundamental Change Repurchase Date by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register.
(h) In connection with any repurchase offer, the Borrower will, if required:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Borrower to repurchase the Notes; in each case, so as to permit the rights and obligations under this Section 6 to be exercised in the time and in the manner specified in this Section 6.
Appears in 1 contract
Samples: Option Exercise and Sixth Amendment to the 10% Secured Convertible Notes (Reed's, Inc.)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, each holder of Series A Preference Shares the Holders shall have the right right, at such Holder’s option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holderHolder’s Series A Preference Shares. Upon such repurchaseNotes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a Business Day (the “Fundamental Change Repurchase Date”) specified by the Company will pay or deliver, as applicable, that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at such holder’s election, either a repurchase price (ithe “Fundamental Change Repurchase Price”) cash in an amount equal to 101100% of the Stated Value principal amount of such Series A Preference Shares the Notes to be repurchased plus the accruedaccrued and unpaid interest, but unpaidif any, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case (x) the Company will pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date; and (y) the Fundamental Change Repurchase Price will not include such accrued and unpaid interest. Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the amount Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or other assets such holder would have received had such holder, immediately the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Common SharesNotes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Date occurs on Notice must comply with the Applicable Procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or after other Paying Agent appointed by the Record Date Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a Dividend new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, but on or before the immediately 15th day following Dividend such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall specify:
(i) the events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any related adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures the Holder must follow to require the Company to repurchase its Notes under Section 4.01, if applicable. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) the principal amount of the withdrawn Notes, which must be $1,000 or an integral multiple thereof;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the withdrawal notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date and Dividends have been declared for such Dividend the Interest Payment Date to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture.
(h) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11) this Article IV applicable to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the an offer to repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to made by the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Dateand such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, each holder of Series A Preference Shares the Holder shall have the right right, at its option, to require the Company Borrower to repurchase, subject to compliance with Section 42A repurchase for cash all or any portion of the Companies Xxx 0000 Notes, on the date (the “Fundamental Change Repurchase Date”) specified by the Borrower that is not less than twenty (20) Business Day or more than thirty-five (35) Business Day following the date of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, Fundamental Change Borrower Notice at such holder’s election, either (i) cash in an amount a repurchase price equal to 101110% of the Stated Value of such Series A Preference Shares Principal Amount, plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) accrued and unpaid interest to, but excluding, the Repurchase Date; or (ii) the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after (the Record Date for “Fundamental Change Repurchase Price”).
(b) Repurchases under this Section 6 shall be made, at the option of the Holder, upon:
(i) delivery to the Borrower of a Dividend and duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Annex C hereto on or before the close of business on the Business Day immediately following Dividend Payment Date and Dividends have been declared preceding the Fundamental Change Repurchase Date; and
(ii) if the entire remaining Principal Amount of this Note is being repurchased, delivery of this Note to the Borrower at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for such Dividend Payment Date, then (x) on such Dividend Payment Datetransfer), such Dividend will be paid delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. Notwithstanding anything herein to the contrary, the Holder shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) Business Day immediately preceding the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Fundamental Change Repurchase Date that is on or after by delivery of a written notice of withdrawal to the Record Date for a Dividend and on Borrower in accordance with Section 6(c).
(c) On or before the immediately following Dividend Payment Date unless twentieth (20th) Business Day after the Company shall have declared and set aside the full amount occurrence of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company Borrower shall send notice (in the manner set forth in Section 11) provide to the holders of record of Series A Preference Shares stating (1) that Holder a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date notice (the “Repurchase DateFundamental Change Borrower Notice”), which will be specified in such notice and must be a Business Day ) of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders occurrence of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including effective date of the place or places where certificates for such shares are to be surrendered for payment Fundamental Change and of the repurchase price. Any notice mailed right at the option of the Holder arising as provided in this subsection shall be conclusively presumed to have been duly given, whether or not a result thereof specifying the holder receives such notice. To tender any Series A Preference Shares for following: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which the Holder may exercise the repurchase right pursuant to this Section 8(c)6; (iv) the Fundamental Change Repurchase Price; (v) the Fundamental Change Repurchase Date; and (vi) if applicable, the holder Conversion Rate and any adjustments to the Conversion Rate. No failure of the Borrower to give the foregoing notice and no defect therein shall limit the Holder’s repurchase rights or affect the validity of the proceedings for the repurchase of this Note pursuant to this Section 6.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Borrower on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Borrower in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(e) To the extent that, as a result of a change in law occurring after the first date on which this Note is issued, the provisions of any applicable securities laws or regulations conflict with the provisions of this Note relating to the Borrower’s obligations to purchase the Notes upon a Fundamental Change, the Borrower shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Note by virtue of such Series conflict.
(f) A Preference Shares must tender such shares Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Company no later than Borrower at any time prior to the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date, specifying the Principal Amount with respect to which such notice of withdrawal is being submitted, and the Principal Amount, if any, that remains subject to the original Fundamental Change Repurchase Notice.
(g) The Borrower will set aside, segregate and hold in trust on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money, in immediately available funds, sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of Notes, payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the Fundamental Change Repurchase Date by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register.
(h) In connection with any repurchase offer, the Borrower will, if required: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Borrower to repurchase the Notes; in each case, so as to permit the rights and obligations under this Section 6 to be exercised in the time and in the manner specified in this Section 6.
Appears in 1 contract
Samples: Limited Waiver, Deferral and Amendment and Restatement Agreement (Reed's, Inc.)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, then each holder Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of Series A Preference Shares such Holder’s Securities or any portion of the Original Principal Amount thereof that is equal to $1,000 or an integral multiple of $1,000, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 15 calendar days and not more than 35 calendar days after the date of the Fundamental Change Repurchase Right Notice, at a repurchase price equal to 100% of the Accreted Principal Amount thereof, together with accrued and unpaid Interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”) (subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 11.09(a)) unless such Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid Interest payable on such Interest Payment Date to the Holder of record at 5:00 p.m., New York City time, on the corresponding Regular Record Date. Notwithstanding the foregoing, Holders shall not have the right to require the Company to repurchaserepurchase any Securities under this Section 11.09 based on a Fundamental Change under clause (1), subject to compliance with Section 42A (2) or (3) of the Companies Xxx 0000 definition thereof (and the Company shall not be required to deliver the Fundamental Change Repurchase Right Notice incidental thereto), if at least 90% of Bermudathe consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights and cash dividends) in connection with a transaction otherwise constituting a Fundamental Change under clause (1), by irrevocable(2) or (3) of the definition thereof consists of shares of common equity traded on any of the New York Stock Exchange, written notice to the CompanyAmerican Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors) (or all will be so traded immediately following such transaction or transactions) and, as a result of such holder’s Series A Preference Shares. Upon such repurchasetransaction or transactions, the Securities become convertible into such shares of such common equity pursuant to Section 12.10 (or cash or a combination of cash and such shares of such common equity pursuant to Section 12.10, if the Company will pay so elects or deliver, as applicablehas so elected). Repurchases of Securities under this Section 11.09 shall be made, at such holder’s electionthe option of the Holder thereof, either upon:
(i) cash if the Securities are held in an amount equal certificated form, delivery to 101% the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Stated Value of such Series A Preference Shares plus Security or, if the accruedSecurities are held in global form, but unpaida notice that complies with the Applicable Procedures, Dividends prior to 5:00 p.m., New York City time, on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Business Day immediately preceding the Fundamental Change Repurchase Date; or and
(ii) delivery or book-entry transfer of the amount Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other assets Paying Agent appointed by the Company), such holder would have received had such holder, immediately prior delivery being a condition to such receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will Price shall be so paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and 11.09 only if the Security so delivered to the Trustee (yor other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Securities to be delivered for repurchase;
(B) the amount portion of such Dividendthe Original Principal Amount of Securities to be repurchased, which must be $1,000 or an integral multiple of $1,000 thereof; and
(C) that the Securities shall be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 11.09 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 11.09. Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will or the Trustee so requires, due endorsement by, or a written instrument of transfer in no event fix a Repurchase Date that is on form satisfactory to the Company and the Trustee duly executed by the Holder thereof or after the Record Date for a Dividend his attorney duly authorized in writing), and on or before the immediately following Dividend Payment Date unless the Company shall have declared execute, and, upon receipt of a Company Order, the Trustee shall authenticate and set aside make available for delivery to the full Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of Dividends due on such Dividend Payment Date. No later than the effective date principal of the Security so surrendered.
(b) After the occurrence of a Fundamental Change, but on or before the 10th calendar day after the Effective Date of such Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) provide to the holders all Holders of record of Series A Preference Shares stating the Securities and the Trustee and Paying Agent a notice (1the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof. Such mailing shall be by first class mail. Each Fundamental Change Repurchase Right Notice shall specify (if applicable):
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 11.09, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Securities with respect to which a Fundamental Change Purchase Notice has occurred, (2) that all Series A Preference Shares tendered been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Series A Certificate will be repurchased on the repurchase date Indenture; and
(the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3ix) the procedures that holders of the Series A Preference Shares Holder must follow to require the Company to purchase its Securities under Section 11.09, if applicable.
(c) A Fundamental Change Repurchase Notice may be withdrawn in order for their Series A Preference Shares to be repurchased, including the place whole or places where certificates for such shares are to be surrendered for payment in part by means of the repurchase price. Any a written notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares withdrawal delivered to the Company no later than Paying Agent and the Close of Business Trustee in accordance with the Fundamental Change Repurchase Right Notice at any time prior to 5:00 p.m., New York City time, on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the Original Principal Amount of such Security with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities; and
(iii) the Original Principal Amount, if any, of such Security which remains subject to the Fundamental Change Repurchase Notice, which portion must be in Original Principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that with respect to Global Securities, the notice must comply with the Applicable Procedures.
(d) Prior to 1:00 p.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 10.03) an amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Securities or portions thereof which are to be repurchased on such Fundamental Change Repurchase Date. Such Fundamental Change Repurchase Price shall be paid to a Holder surrendering Securities for repurchase pursuant to a Fundamental Change Repurchase Notice, subject to receipt of cash by the Paying Agent from the Company, on the later of (1) the Fundamental Change Repurchase Date with respect to such Security (provided the conditions in Section 11.09(a) have been satisfied by such Holder) and (2) the time of book-entry transfer or delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 11.09(a). Securities in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 12 on or after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn pursuant to Section 11.09(c).
(e) If the Paying Agent (other than the Company or a Subsidiary) holds, in accordance with the terms hereof, at 1:00 p.m., New York City time, on the applicable Fundamental Change Repurchase Date, cash sufficient to pay the Fundamental Change Repurchase Price of any Securities for which a Fundamental Change Repurchase Notice has been tendered and not withdrawn pursuant to Section 11.09(c), then, on and after such Fundamental Change Repurchase Date, such Securities will cease to be Outstanding, the Accreted Principal Amount shall cease to accrete and Interest, if any, on such Securities will cease to accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery of such Securities, together with any necessary endorsement) and the repurchased Securities shall be cancelled.
(f) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 11.09 if the Accreted Principal Amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Securities).
Appears in 1 contract
Samples: Indenture (Hercules Offshore, Inc.)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of If a Fundamental ChangeChange occurs at any time, then each holder Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of Series A Preference Shares such Holder’s Securities or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (“the Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days and not more than 35 calendar days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the close of business on the corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). However, notwithstanding the foregoing, Holders shall not have the right to require the Company to repurchase, subject repurchase any Securities (and the Company shall not be required to compliance with Section 42A deliver the Fundamental Change Repurchase Right Notice incidental thereto) if a Fundamental Change under clauses (1) or (2) of the Companies Xxx 0000 definition of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, Fundamental Change occurs and at such holder’s election, either (i) cash in an amount equal to 101least 90% of the Stated Value of such Series A Preference Shares plus consideration paid for the accrued, but unpaid, Dividends on such Company’s Common Stock (excluding cash payments for fractional shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; or (ii) the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares cash payments made pursuant to this Section 8(c); dissenter’s appraisal rights and (ycash dividends) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence case of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, under clause (2) that all Series A Preference Shares tendered of the definition of Fundamental Change consists of shares of common equity or American Depositary Receipts in accordance with this Series A Certificate respect of shares of common equity traded on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors) (or will be repurchased on so traded immediately following the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day completion of the Company’s choosing that is no earlier than 30merger or consolidation or such other transaction) and, nor later than 60 calendar days after as a result of such transaction or transactions, the date Securities become convertible into such notice is sent and (3) shares of Common Stock or such American Depositary Receipts. Repurchases of Securities under this Section 1101 shall be made, at the procedures that holders option of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchasedHolder thereof, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Date.upon:
Appears in 1 contract
Samples: Indenture (Usec Inc)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) If a Fundamental Change occurs at any time, the Holders shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a Business Day (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case (x) the Company will pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date; and (y) the Fundamental Change Repurchase Price will not include such accrued and unpaid interest. Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, each holder but on or before the 15th day following such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of Series A Preference Shares the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall have specify:
(i) the right events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any related adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures the Holder must follow to require the Company to repurchaserepurchase its Notes under Section 4.01, subject to compliance with Section 42A if applicable. No failure of the Companies Xxx 0000 Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of Bermuda, the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by irrevocable, means of a written notice of withdrawal delivered to the CompanyPaying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either specifying:
(i) cash in an the principal amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accruedwithdrawn Notes, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; which must be $1,000 or an integral multiple thereof;
(ii) if certificated Notes have been issued, the amount certificate numbers of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares the withdrawn Notes; and
(iii) the principal amount, if applicableany, been entitled of such Note that remains subject to participate in such the original Fundamental Change as a holder Repurchase Notice, which portion must be in principal amounts of Common Shares$1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the withdrawal notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date occurs all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date for a Dividend and on or before the immediately following Dividend Interest Payment Date and Dividends have been declared for such Dividend Payment to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture.
(h) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11) this Article IV applicable to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the an offer to repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to made by the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Dateand such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) If a Fundamental Change occurs at any time, the Holders shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date (the “Fundamental Change Repurchase Price”). Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any purchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, each holder but on or before the 15th day following such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of Series A Preference Shares the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall have specify:
(i) the events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the Holder has the right to withdraw any Notes tendered for repurchase prior to the Close of Business on second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(x) the procedures the Holder must follow to require the Company to repurchasepurchase its Notes under Section 4.01, subject to compliance with Section 42A if applicable. No failure of the Companies Xxx 0000 Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of Bermuda, the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by irrevocable, means of a written notice of withdrawal delivered to the CompanyPaying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either specifying:
(i) cash in an the principal amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; or withdrawn Notes;
(ii) if certificated Notes have been issued, the amount certificate numbers of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares the withdrawn Notes; and
(iii) the principal amount, if applicableany, been entitled of such Note that remains subject to participate in such the original Fundamental Change as a holder Repurchase Notice, which portion must be in principal amounts of Common Shares$1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date occurs all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date for a Dividend and on or before the immediately following Dividend Interest Payment Date and Dividends have been declared for such Dividend Payment to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified in this Indenture.
(h) Notwithstanding anything to the contrary in this Article 4, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11) this Article 4 applicable to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the an offer to repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to made by the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Dateand such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) If a Fundamental Change occurs at any time, the Holders shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date (the “Fundamental Change Repurchase Price”). Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, each holder but on or before the 15th day following such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of Series A Preference Shares the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall have specify:
(i) the right events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures the Holder must follow to require the Company to repurchaserepurchase its Notes under Section 4.01, subject to compliance with Section 42A if applicable. No failure of the Companies Xxx 0000 Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of Bermuda, the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by irrevocable, means of a written notice of withdrawal delivered to the CompanyPaying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either specifying:
(i) cash in an the principal amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; or withdrawn Notes;
(ii) if certificated Notes have been issued, the amount certificate numbers of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares the withdrawn Notes; and
(iii) the principal amount, if applicableany, been entitled of such Note that remains subject to participate in such the original Fundamental Change as a holder Repurchase Notice, which portion must be in principal amounts of Common Shares$1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date occurs all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date for a Dividend and on or before the immediately following Dividend Interest Payment Date and Dividends have been declared for such Dividend Payment to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture.
(h) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11) this Article IV applicable to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the an offer to repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to made by the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Dateand such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of If a Fundamental Changefundamental change (as defined below in this section) occurs at any time, each holder of Series A Preference Shares shall you will have the right right, at your option, to require the Company us to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, repurchase any or all of such holder’s Series A Preference Shares. Upon such repurchaseyour notes, or any portion of the Company will pay or deliver, as applicable, at such holder’s election, either (i) cash in an principal amount thereof that is equal to 101$1,000 or a multiple of $1,000, on a date (the “fundamental change repurchase date”) of our choosing that is not less than 20 or more than 35 business days after the date of our notice of the fundamental change. The price we are required to pay is equal to 100% of the Stated Value principal amount of such Series A Preference Shares the notes to be repurchased, plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) accrued and unpaid interest to, but excluding, the Repurchase Datefundamental change repurchase date (unless the fundamental change repurchase date is between a regular record date and the interest payment date to which it relates, in which case we will pay the full interest amount payable on such interest payment date to the record holder as of such record date). Any notes repurchased by us will be paid for in cash. A “fundamental change” will be deemed to have occurred at the time after the notes are originally issued that any of the following occurs: • if any “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than us, our subsidiaries or our or their employee benefit plans becomes the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of our common equity representing more than 50% of the voting power of our common equity; • consummation of (A) any recapitalization, reclassification or change of our common stock (other than changes resulting from a subdivision or combination) as a result of which our common stock would be converted into, or exchanged for, stock, other securities, other property or assets or (iiB) any share exchange, consolidation or merger of us pursuant to which our common stock will be converted into cash, securities or other property or any conveyance, transfer, sale, lease or other disposition in one transaction or a series of transactions of all or substantially all of the amount consolidated assets of cash and/or other assets such holder would have received had such holderus and our subsidiaries, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in such Fundamental Change taken as a holder whole, to any person other than one of Common Sharesour subsidiaries; provided, however, that a transaction pursuant to which the holders of 50% or more of the total voting power of all classes of our common equity immediately prior to such transaction have the right to exercise 50% or more of the total voting power of all shares of common equity of the continuing or surviving corporation (or any parent thereof) entitled to vote generally in elections of directors of such corporation (or any parent thereof) immediately after such event shall not be a fundamental change; • the following persons cease for any reason to constitute a majority of our board of directors: • individuals who on the first issue date of the notes constituted our board of directors; and • any new directors whose election to our board of directors or whose nomination for election by our stockholders was approved by at least a majority of our directors then still in office either who were directors on such first issue date of the notes or whose election or nomination for election was previously so approved; • our stockholders approve any plan or proposal for our liquidation or dissolution; or • our common stock (or other common stock into which the notes are then convertible) ceases to be listed on any of the NASDAQ Global Market, the NASDAQ Global Select Market, the NASDAQ Capital Market or the New York Stock Exchange or other national securities exchange. A fundamental change as a result of the first and second bullets above will not be deemed to have occurred, however, if at least 90% of the Repurchase Date occurs consideration paid for our common stock, excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights, in the transaction or transactions constituting the fundamental change consists of shares of common stock listed on any of the NASDAQ Global Market, NASDAQ Global Select Market, the NASDAQ Capital Market or after the Record Date for New York Stock Exchange (or any of their respective successors) or that will be so listed immediately following such fundamental change (these securities being referred to as “publicly traded securities”) and as a Dividend and result of this transaction or transactions the notes become convertible into such publicly traded securities on the basis set forth under the last paragraph under “—Conversion Rate Adjustments,” subject to the provisions set forth under “—Conversion Procedures” above. On or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or 15th calendar day after the Record Date for occurrence of a Dividend fundamental change, we will provide to all holders of the notes and on or before the immediately following Dividend Payment Date unless the Company shall have declared trustee and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date paying agent a written notice of the occurrence of the fundamental change and of the resulting repurchase right. Such notice shall state, among other things: • the events causing a Fundamental Change, fundamental change; • the Company shall send notice (in date of the manner set forth in Section 11) to fundamental change; • the holders of record of Series A Preference Shares stating (1) that last date on which a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on holder may exercise the repurchase date (right; • the “Repurchase Date”), which will be specified in such notice fundamental change repurchase price; • the fundamental change repurchase date; • the name and must be a Business Day address of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after paying agent and the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Date.conversion agent;
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, each holder then, subject to the other provisions of Series A Preference Shares this Article IV, the Holders shall have the right right, at such Holder’s option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holderHolder’s Series A Preference Shares. Upon such repurchaseNotes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a Business Day (the “Fundamental Change Repurchase Date”) specified by the Company will pay or deliver, as applicable, that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at such holder’s election, either (i) cash in an amount a Fundamental Change Repurchase Price equal to 101100% of the Stated Value aggregate principal amount of such Series A Preference Shares the Notes to be repurchased plus the accruedaccrued and unpaid interest, but unpaidif any, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case (x) the Company will pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date; and (y) the Fundamental Change Repurchase Price will not include such accrued and unpaid interest. Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the amount Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or other assets such holder would have received had such holder, immediately the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Common SharesNotes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Date occurs on Notice must comply with the Applicable Procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or after other Paying Agent appointed by the Record Date Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a Dividend new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, but on or before the immediately 15th day following Dividend such occurrence, the Company shall provide to all Holders and the Trustee, the Paying Agent and the Conversion Agent a notice (the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall specify:
(i) the events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) if such Fundamental Change is not an Exempted Fundamental Change, the last date on which a Holder may exercise its repurchase rights under Section 4.01;
(iv) if such Fundamental Change is not an Exempted Fundamental Change, the Fundamental Change Repurchase Price;
(v) if such Fundamental Change is not an Exempted Fundamental Change, the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent (if such Fundamental Change is not an Exempted Fundamental Change) and the Conversion Agent;
(vii) the applicable Conversion Rate and any related adjustments to the applicable Conversion Rate;
(viii) if such Fundamental Change is not an Exempted Fundamental Change, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) if such Fundamental Change is not an Exempted Fundamental Change, the procedures the Holder must follow to require the Company to repurchase its Notes under Section 4.01, if applicable; and
(x) if such Fundamental Change is an Exempted Fundamental Change, that the Company is not required to offer to repurchase the Notes pursuant to such Exempted Fundamental Change. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) the principal amount of the withdrawn Notes, which must be $1,000 or an integral multiple thereof;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the withdrawal notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date and Dividends have been declared for such Dividend the Interest Payment Date to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes,
(h) in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture.
(i) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to offer to repurchase, or repurchase, the Notes pursuant to this Article IV in respect of an event that constitutes a Fundamental Change pursuant to clause (2) of the definition thereof if (i) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 5.05 and, if applicable, Section 5.07) into Reference Property consisting of cash (in U.S. dollars) in an amount per Note that is greater than the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date, including any accrued and unpaid interest prior to such date); and (ii) the related Fundamental Change Repurchase Right Notice sent pursuant to Section 4.01(b) states that Holders will have the right to convert their Notes and receive such amount of cash.
(j) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11) this Article IV applicable to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the an offer to repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to made by the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase Dateand such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Samples: Indenture (Redwood Trust Inc)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) If a Fundamental Change occurs at any time, the Holders shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a Business Day (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at a Fundamental Change Repurchase Price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case (i) the Company will pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date; and (ii) the Fundamental Change Repurchase Price will not include such accrued and unpaid interest. Any Notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, each holder but on or before the 15th day following such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of Series A Preference Shares the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall have specify:
(i) the right events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Exchange Agent, if applicable;
(vii) that the Notes are eligible to be exchanged, the applicable Exchange Rate and any related adjustments to the applicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be exchanged only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures the Holder must follow to require the Company to repurchaserepurchase its Notes under Section 4.01, subject to compliance with Section 42A if applicable. No failure of the Companies Xxx 0000 Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of Bermuda, the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by irrevocable, means of a written notice of withdrawal delivered to the CompanyPaying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either specifying:
(i) cash in an the principal amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accruedwithdrawn Notes, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; which must be $1,000 or an integral multiple thereof;
(ii) if such Notes are certificated Notes, the amount certificate numbers of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares the withdrawn Notes; and
(iii) the principal amount, if applicableany, been entitled of such Note that remains subject to participate in such the original Fundamental Change as a holder Repurchase Notice, which portion must be in principal amounts of Common Shares$1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date occurs all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date for a Dividend and on or before the immediately following Dividend Interest Payment Date and Dividends have been declared for such Dividend Payment to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture.
(h) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to make an offer to repurchase the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in Section 11this Article IV applicable to an offer to repurchase made by the Company and such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
(i) Notwithstanding any other provision of this Article IV, the Company will not be required to offer to repurchase, or repurchase, the holders of record of Series A Preference Shares stating (1) that Notes upon a Fundamental Change has occurred, pursuant to clause (2) of the definition of “Fundamental Change” if (i) such Fundamental Change results in the Notes becoming exchangeable (pursuant to Section 5.05) into Reference Property consisting of cash (in U.S. dollars) in an amount per Note that all Series A Preference Shares tendered in accordance with this Series A Certificate will is greater than the Fundamental Change Purchase Price (assuming the maximum amount of accrued interest would be repurchased payable based on the latest possible Fundamental Change Purchase Date, including any interest payable prior to such date) and (ii) the Fundamental Change Repurchase Notice states that Holders will have the right to exchange their Notes and receive such greater amount of cash. For the avoidance of doubt, under such circumstances, the Company will not be required to offer to repurchase date (the “Repurchase Date”), which will be specified Notes in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase DateNotice.
Appears in 1 contract
Samples: Indenture (Redwood Trust Inc)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) If a Fundamental Change occurs at any time, the Holders shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, unless such Fundamental Change Repurchase Date falls after a Regular Record Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date, in which case the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the Close of Business on such Regular Record Date (the “Fundamental Change Repurchase Price”). Any notes repurchased by the Company will be paid for in cash. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice and prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any purchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder in accordance with Section 4.01(d). The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a new certificated Note or new certificated Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) After the occurrence of a Fundamental Change, each holder but on or before the 15th day following such occurrence, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of Series A Preference Shares the occurrence of such Fundamental Change and of the resulting repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall have specify:
(i) the events causing the Fundamental Change and whether such Fundamental Change also constitutes a Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01, if applicable;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the Holder has the right to withdraw any Notes tendered for repurchase prior to the Close of Business on second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(x) the procedures the Holder must follow to require the Company to repurchasepurchase its Notes under Section 4.01, subject to compliance with Section 42A if applicable. No failure of the Companies Xxx 0000 Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of Bermuda, the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole or in part by irrevocable, means of a written notice of withdrawal delivered to the CompanyPaying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second scheduled Trading Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either specifying:
(i) cash in an the principal amount equal to 101% of the Stated Value of such Series A Preference Shares plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Repurchase Date; or withdrawn Notes;
(ii) if certificated Notes have been issued, the amount certificate numbers of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares the withdrawn Notes; and
(iii) the principal amount, if applicableany, been entitled of such Note that remains subject to participate in such the original Fundamental Change as a holder Repurchase Notice, which portion must be in principal amounts of Common Shares$1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date occurs all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date for a Dividend and on or before the immediately following Dividend Interest Payment Date and Dividends have been declared for such Dividend Payment to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, then (xi) such Notes shall cease to be outstanding and interest shall cease to accrue on such Dividend Payment DateNotes, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Dividend will Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest, if any, upon delivery or book-entry transfer of the Notes.
(f) No Notes may be paid repurchased at the option of Holders on any date if the Series A Preference Shares notwithstanding principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of offer upon the occurrence of a Fundamental Change, the Company shall send notice shall, if required:
(i) comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner set forth in Section 11) to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase DateIndenture.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon At the occurrence option of a Fundamental Change, each holder of Series A Preference Shares shall have the right to require the Company to repurchase, Holder and subject to compliance with Section 42A the terms and conditions of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchaseIndenture, the Company will pay shall become obligated to repurchase all or deliver, a portion of the Securities specified by the Holder (so long as applicable, the principal amount of such part is $1,000 or a multiple of $1,000 in excess thereof) on the date designated by the Company that is not less than 30 days nor more than 60 days after the date of written notice of such Fundamental Change at such holder’s election, either (i) cash in an amount a Fundamental Change Repurchase Price equal to 101100% of the Stated Value of such Series A Preference Shares principal amount, plus the accrued, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date; or (ii) , payable in Cash, plus the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares andMake Whole Premium, if applicableany, been entitled to participate determined in such Fundamental Change as a holder accordance with the terms of Common Sharesthe Indenture; provided, however, that if the a Fundamental Change Repurchase Date occurs on or falls after the an Interest Payment Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend corresponding Interest Payment Date, then (x) on such Dividend Payment Date, such Dividend will the interest shall be paid payable to the Holders in whose name the Securities are registered at the close of business on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or after the Interest Payment Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of Within 30 days after the occurrence of a Fundamental Change, the Company shall send notice (in mail or cause the manner set forth in Section 11) Trustee to the holders mail to all Holders of record of Series A Preference Shares stating the Securities a notice (1the "FUNDAMENTAL CHANGE NOTICE") that describing, among other things, the occurrence of such Fundamental Change and of the repurchase right arising as a result thereof as well as the Fundamental Change Repurchase Date. The Company must deliver a copy of the Fundamental Change Notice to the Trustee and cause a copy of such notice to be published in a newspaper of general circulation in the Borough of Manhattan, the City of New York, which newspaper shall be The Wall Street Journal, if still in circulation at such time. To exercise the repurchase right, a Holder of the Securities must deliver a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered Repurchase Notice to the Paying Agent at any time prior to the close of business on the Business Day prior to the Fundamental Change Repurchase Date. The Holder shall have the right to withdraw any Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day prior to the Fundamental Change Repurchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day terms of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Repurchase DateIndenture.
Appears in 1 contract
Samples: Indenture (Century Aluminum Co)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time prior to the Stated Maturity, each holder of Series A Preference Shares the Holders shall have the right right, at such Holders’ option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holder’s Series A Preference Shares. Upon such repurchaseHolders’ Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”, which definition reflects postponement, if any, permitted by the last sentence of this Section 4.01(a)) specified by the Company will pay or deliver, as applicable, that is not less than 20 calendar days and not more than 35 calendar days following the date of the Fundamental Change Repurchase Right Notice at such holder’s election, either a repurchase price (ithe “Fundamental Change Repurchase Price”) cash in an amount equal to 101100% of the Stated Value principal amount of such Series A Preference Shares the Notes to be repurchased, plus the accruedaccrued and unpaid interest, but unpaidif any, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) to, but excluding, the Fundamental Change Repurchase Date, (unless such Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company will instead pay, on or, at its election, before such Interest Payment Date, the full amount of accrued and unpaid interest to the Holder of record as of such Regular Record Date and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be purchased). Any Notes repurchased by the Company pursuant to this Section 4.01 will be paid for in cash. The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company to comply with applicable law. Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a written repurchase notice (the “Fundamental Change Repurchase Notice”) or, if the Notes are Global Notes, a notice that complies with the Applicable Procedures, on or before the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; or and
(ii) delivery or book-entry transfer of the amount Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or other assets such holder would have received had such holder, immediately the Fundamental Change Repurchase Notice and prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Common SharesNotes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Date occurs on Notice must comply with the Applicable Procedures. The Trustee (or after other Paying Agent appointed by the Record Date Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any certificated Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such certificated Note without service charge, a Dividend new certificated Note or new certificated Notes, containing identical terms and on conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the certificated Note so surrendered.
(b) On or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or 20th calendar day after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company shall send provide to all Holders and the Trustee, the Paying Agent (if other than the Trustee) and Conversion Agent (if other than the Trustee) a written notice (in the manner set forth in “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the resulting repurchase right. Each Fundamental Change Repurchase Right Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under this Section 114.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent (if other than the Trustee);
(vii) the applicable Conversion Rate and, if applicable, any adjustments to the holders of record of Series A Preference Shares stating applicable Conversion Rate resulting from such Fundamental Change;
(1viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has occurred, (2) that all Series A Preference Shares tendered been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Series A Certificate will be repurchased on the repurchase date Indenture; and
(the “Repurchase Date”), which will be specified in such notice and must be a Business Day of the Company’s choosing that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3ix) the procedures the Holder must follow to require the Company to repurchase its Notes under this Section 4.01. Simultaneously with providing such notice, the Company shall issue a press release or publish the information on its website or through such other public medium as the Company may use at that holders time. No failure of the Series A Preference Shares must follow in order for their Series A Preference Shares Company to be repurchased, including give the place foregoing notices and no defect therein shall limit the Holders’ repurchase rights or places where certificates for such shares are to be surrendered for payment affect the validity of the proceedings for the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not of the holder receives such notice. To tender any Series A Preference Shares for repurchase Notes pursuant to this Section 8(c), the holder 4.01.
(c) Holders may withdraw a Fundamental Change Repurchase Notice in whole or in part by means of such Series A Preference Shares must tender such shares a written notice of withdrawal delivered to the Company no later than Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) the principal amount of the withdrawn Notes, which must be in principal amounts of $1,000 or an integral multiple thereof;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), or (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 in accordance with the provisions in Section 3.01(c). The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Fundamental Change Repurchase Date, as applicable, falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, or if extended in order to allow us to comply with applicable law, such later date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn: (i) such Notes shall cease to be outstanding and interest shall cease to accrue on such Notes on the Fundamental Change Repurchase Date or, if extended in order to allow us to comply with applicable law, such later date, whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent, and (ii) all other rights of the Holders of such Notes shall terminate on the Fundamental Change Repurchase Date or, if extended in order to allow us to comply with applicable law, such later date (other than (x) the right to receive the Fundamental Change Repurchase Price and (y) if the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the related Interest Payment Date, the right of the Holder of record on such Regular Record Date to receive the accrued and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date).
(f) No Notes may be repurchased at the option of Holders on any date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the applicable Fundamental Change Repurchase Price with respect to such Notes).
(g) In connection with any repurchase offer upon the occurrence of a Fundamental Change, the Company shall, if required:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable;
(ii) file a Schedule TO or any required schedule, under the Exchange Act; and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, in each case, so as to permit the rights and obligations under this Article IV to be exercised in the time and in the manner specified in this Indenture, subject to postponement in order to allow us to comply with applicable law. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to the Company’s obligations to purchase the Notes upon a Fundamental Change, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such conflict.
(h) Notwithstanding anything to the contrary in this Article IV, the Company will not be required to repurchase, or make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer to repurchase in the manner, at the times and otherwise in compliance with the requirements set forth in this Article IV applicable to an offer to repurchase made by the Company and such third party purchases all Notes properly tendered and not validly withdrawn under such offer.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) The Company must commence, within 30 days of the occurrence of a Fundamental Change, each holder an Offer to Purchase by mailing a notice (the “Fundamental Change Repurchase Right Notice”) to Holders of Series A Preference Shares shall have Securities, and consummate an Offer to Purchase for all Securities then Outstanding at a purchase price (the right to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either (i“Fundamental Change Repurchase Price”) cash in an amount equal to 101% of their principal amount on the Stated Value date of such Series A Preference Shares plus purchase (the accrued“Fundamental Change Repurchase Date”). The Company will not be required to make an Offer to Purchase upon the occurrence of a Fundamental Change if a third party makes an offer to purchase the Securities in a manner, but unpaid, Dividends on such shares (other than any such Regular Dividends included at the times and price and otherwise in compliance with the requirements of this Indenture and purchases all Securities validly tendered and not withdrawn in such Stated Value) tooffer to purchase. Repurchases of Securities under this Section 3.01 shall be made, but excludingat the option of the Holder thereof, prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, upon:
(i) if the Securities are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Repurchase Notice”) in the form set forth on the reverse of the Security or, if the Securities are held in global form, a notice that complies with the Applicable Procedures; or and
(ii) delivery or book-entry transfer of the amount Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other assets Paying Agent appointed by the Company), such holder would have received had such holder, immediately prior delivery being a condition to such receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will Price shall be so paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and 3.01 only if the Security so delivered to the Trustee (yor other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Repurchase Notice. The Repurchase Notice shall state:
(1) if certificated, the certificate numbers of Securities to be delivered for repurchase;
(2) the portion of the principal amount of such DividendSecurities to be repurchased, which must be $1,000 or a multiple thereof;
(3) that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture; and
(4) the CUSIP numbers, if a Regular Dividend, will not any. Any purchase of Securities or portions thereof by the Company contemplated pursuant to the provisions of this Section 3.01 shall be included consummated by the delivery to the Holder of the payment in cash of the amount equal to the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security; provided that each Security purchased shall be in the sum in clause principal amount of $1,000 or multiples of $1,000. The Trustee (ior other Paying Agent appointed by the Company) above; provided, further, that shall promptly notify the Company will of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof in no event fix a Repurchase Date accordance with the provisions of subsection (c) of this Section 3.01. Any Security that is on to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or after the Record Date for Trustee so requires, due endorsement by, or a Dividend written instrument of transfer in form satisfactory to the Company and on the Trustee duly executed by the Holder thereof or before the immediately following Dividend Payment Date unless his attorney duly authorized in writing), and the Company shall have declared execute, and set aside the full Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered; provided that each new Security issued shall be in a principal amount of Dividends due on such Dividend Payment Date. No later than the effective date $1,000 or multiples of the $1,000.
(b) Within 30 days of an occurrence of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) provide to the holders all Holders of record of Series A Preference Shares stating (1) that the Securities and the Trustee and Paying Agent a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date notice (the “Fundamental Change Repurchase DateRight Notice”)) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in The City of New York or on the Company’s website or through such other public medium as the Company may use at such time. Each Fundamental Change Repurchase Right Notice shall specify (if applicable):
(i) that the Offer to Purchase is being made with respect to this Section 3.01;
(ii) the events causing the Fundamental Change;
(iii) the date of the Fundamental Change;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date (which will be specified in such notice and must shall be a Business Day of the Company’s choosing that is no earlier than 30, 30 days nor later than 60 calendar days after from the date such notice Fundamental Change Repurchase Right Notice is sent and mailed);
(3vi) the procedures that holders name and address of the Series A Preference Shares must follow Paying Agent and the Conversion Agent;
(vii) the applicable Conversion Price and any adjustments to the applicable Conversion Price;
(viii) that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in order for their Series A Preference Shares accordance with the terms of this Indenture;
(ix) that Holders electing to have a Security purchased pursuant to the Offer to Purchase will be repurchasedrequired to surrender the Security, including together with the place or places where certificates for such shares are to be surrendered for payment form entitled “Form of Repurchase Notice” on the reverse side of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly givenSecurity completed, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than Paying Agent at the Close address specified in the notice prior to the close of Business business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date;
(x) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Fundamental Change Repurchase Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for purchase and a statement that such Xxxxxx is withdrawing his election to have such Securities purchased;
(xi) that Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided that each Security purchased and each new Security issued shall be in a principal amount of $1,000 or multiples of $1,000;
(xii) the procedures the Holder must follow to require the Company to purchase its Securities under Section 3.01; and
(xiii) the CUSIP numbers, if any. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 3.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the close of business on the third Business Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities, or if not certificated notice that complies with applicable DTC procedures;
(ii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted; and
(iii) the principal amount, if any, of such Security that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall (a) accept for payment Securities or portions thereof tendered pursuant to an Offer to Purchase and not validly withdrawn; (b) deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 7.06) money sufficient to pay the purchase price of all Securities or portions thereof so accepted; and (c) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers’ Certificate specifying the Securities or portions thereof accepted for payment by the Company. Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Security (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 3.01), and (y) the time of book-entry transfer or the delivery of such Security to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 3.01 by mailing checks for the amount payable to the Holders of such Securities entitled thereto as they shall appear in the Register; provided, however, that all payments shall be subject to Section 3.01(a) and payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or Securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (1) such Securities shall cease to be outstanding, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Trustee or Paying Agent, and (2) all other rights of the Holders of such Securities shall terminate, other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Securities.
(f) No Securities may be repurchased at the option of Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded on or prior to such date.
(g) The Company will publicly announce the results of an Offer to Purchase on or as soon as possible after the date of purchase.
(h) The Company will comply with the provisions of Rule 13e-4, Rule 14e-l and any other tender offer rules under the Exchange Act that may be applicable; and otherwise comply with all applicable federal and state securities laws.
Appears in 1 contract
Samples: Indenture (E Trade Financial Corp)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, then each holder of Series A Preference Shares Holder shall have the right right, at such Holder’s option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holderHolder’s Series A Preference Shares. Upon such repurchaseNotes, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company will pay or deliver, as applicable, that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice at such holder’s election, either (i) cash in an amount a repurchase price equal to 101100% of the Stated Value of such Series A Preference Shares plus the accruedprincipal amount thereof, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (unless the Fundamental Change Repurchase Date is between a Regular Record Date and the Interest Payment Date to which it relates, in which case the Company will pay the full interest amount payable on such Interest Payment Date to the record holder as of such Regular Record Date) (the “Fundamental Change Repurchase Price”). Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note or, if the Notes are held in global form, a notice that complies with the Applicable Procedures, prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; or and
(ii) delivery or book-entry transfer of the amount Notes (together with all necessary endorsements) to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or other assets such holder would have received had such holder, immediately the Fundamental Change Repurchase Notice and prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Common SharesNotes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Any purchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date occurs on and the time of the book-entry transfer or after delivery of the Record Date Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a Dividend new Note or Notes, containing identical terms and on conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or 15th day after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) provide to the holders all Holders of record of Series A Preference Shares stating the Notes and the Trustee and Paying Agent a written notice (1the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Repurchase Right Notice shall specify (if applicable):
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has occurred, (2) that all Series A Preference Shares tendered been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day terms of the Company’s choosing Indenture;
(ix) that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares Holder must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the exercise its repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than right by the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date;
(x) that the Holder has the right to withdraw any Notes tendered for repurchase prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(xi) the procedures the Holder must follow to require the Company to purchase its Notes under Section 4.01. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by a written notice of withdrawal delivered to the Paying Agent at any time prior to the Close of Business on the Business Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) the principal amount of the withdrawn Notes;
(ii) if Certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000; provided, however, that if the Notes are not in certificated form, the notice must comply with the Applicable Procedures.
(d) On or prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 7.05 of the Base Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly on or after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that all payments shall be subject to Section 4.01(a) and payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased on the Fundamental Change Repurchase Date, then: (i) such Notes shall cease to be outstanding and interest shall cease to accrue on such Notes (whether or not book-entry transfer of the Notes is made or whether or not the Note is delivered or transferred to the Paying Agent), and (ii) all other rights of the Holders of such Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest upon delivery or transfer of the Notes.
(f) No Notes may be repurchased at the option of Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Fundamental Change Repurchase Price of the Notes.
(g) In connection with any repurchase upon the occurrence of a Fundamental Change, to the extent required by applicable law, the Company shall:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; and
(ii) otherwise comply with all federal and state securities laws as necessary to effect a repurchase of Notes by the Company at the option of such Holder.
Appears in 1 contract
Samples: First Supplemental Indenture (Onyx Pharmaceuticals Inc)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon (a) The Company must commence, within 30 days of the occurrence of a Fundamental Change, each holder an Offer to Purchase by mailing a notice (the “Fundamental Change Repurchase Right Notice”) to Holders of Series A Preference Shares shall have Securities, and consummate an Offer to Purchase for all Securities then Outstanding at a purchase price (the right to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or all of such holder’s Series A Preference Shares. Upon such repurchase, the Company will pay or deliver, as applicable, at such holder’s election, either (i“Fundamental Change Repurchase Price”) cash in an amount equal to 101% of their principal amount on the Stated Value date of such Series A Preference Shares plus purchase (the accrued“Fundamental Change Repurchase Date”). The Company will not be required to make an Offer to Purchase upon the occurrence of a Fundamental Change if a third party makes an offer to purchase the Securities in a manner, but unpaid, Dividends on such shares (other than any such Regular Dividends included at the times and price and otherwise in compliance with the requirements of this Indenture and purchases all Securities validly tendered and not withdrawn in such Stated Value) tooffer to purchase. Repurchases of Securities under this Section 3.01 shall be made, but excludingat the option of the Holder thereof, prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, upon:
(i) if the Securities are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Repurchase Notice”) in the form set forth on the reverse of the Security or, if the Securities are held in global form, a notice that complies with the Applicable Procedures; or and
(ii) delivery or book-entry transfer of the amount Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of cash and/or the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other assets Paying Agent appointed by the Company), such holder would have received had such holder, immediately prior delivery being a condition to such receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will Price shall be so paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and 3.01 only if the Security so delivered to the Trustee (yor other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Repurchase Notice. The Repurchase Notice shall state:
(1) if certificated, the certificate numbers of Securities to be delivered for repurchase;
(2) the portion of the principal amount of such DividendSecurities to be repurchased, which must be $1,000 or a multiple thereof;
(3) that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture; and
(4) the CUSIP numbers, if a Regular Dividend, will not any. Any purchase of Securities or portions thereof by the Company contemplated pursuant to the provisions of this Section 3.01 shall be included consummated by the delivery to the Holder of the payment in cash of the amount equal to the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security; provided that each Security purchased shall be in the sum in clause principal amount of $1,000 or multiples of $1,000. The Trustee (ior other Paying Agent appointed by the Company) above; provided, further, that shall promptly notify the Company will of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof in no event fix a Repurchase Date accordance with the provisions of subsection (c) of this Section 3.01. Any Security that is on to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or after the Record Date for Trustee so requires, due endorsement by, or a Dividend written instrument of transfer in form satisfactory to the Company and on the Trustee duly executed by the Holder thereof or before the immediately following Dividend Payment Date unless his attorney duly authorized in writing), and the Company shall have declared execute, and set aside the full Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered; provided that each new Security issued shall be in a principal amount of Dividends due on such Dividend Payment Date. No later than the effective date $1,000 or multiples of the $1,000.
(b) Within 30 days of an occurrence of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) provide to the holders all Holders of record of Series A Preference Shares stating (1) that the Securities and the Trustee and Paying Agent a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date notice (the “Fundamental Change Repurchase DateRight Notice”)) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in The City of New York or on the Company’s website or through such other public medium as the Company may use at such time. Each Fundamental Change Repurchase Right Notice shall specify (if applicable):
(i) that the Offer to Purchase is being made with respect to this Section 3.01;
(ii) the events causing the Fundamental Change;
(iii) the date of the Fundamental Change;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date (which will be specified in such notice and must shall be a Business Day of the Company’s choosing that is no earlier than 30, 30 days nor later than 60 calendar days after from the date such notice Fundamental Change Repurchase Right Notice is sent and mailed);
(3vi) the procedures that holders name and address of the Series A Preference Shares must follow Paying Agent and the Conversion Agent;
(vii) the applicable Conversion Price and any adjustments to the applicable Conversion Price;
(viii) that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in order for their Series A Preference Shares accordance with the terms of this Indenture;
(ix) that Holders electing to have a Security purchased pursuant to the Offer to Purchase will be repurchasedrequired to surrender the Security, including together with the place or places where certificates for such shares are to be surrendered for payment form entitled “Form of Repurchase Notice” on the reverse side of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly givenSecurity completed, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than Paying Agent at the Close address specified in the notice prior to the close of Business business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date;
(x) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Fundamental Change Repurchase Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for purchase and a statement that such Hxxxxx is withdrawing his election to have such Securities purchased;
(xi) that Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided that each Security purchased and each new Security issued shall be in a principal amount of $1,000 or multiples of $1,000;
(xii) the procedures the Holder must follow to require the Company to purchase its Securities under Section 3.01; and
(xiii) the CUSIP numbers, if any. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 3.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the close of business on the third Business Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities, or if not certificated notice that complies with applicable DTC procedures;
(ii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted; and
(iii) the principal amount, if any, of such Security that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000.
(d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall (a) accept for payment Securities or portions thereof tendered pursuant to an Offer to Purchase and not validly withdrawn; (b) deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 7.06) money sufficient to pay the purchase price of all Securities or portions thereof so accepted; and (c) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an Officers’ Certificate specifying the Securities or portions thereof accepted for payment by the Company. Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Security (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 3.01), and (y) the time of book-entry transfer or the delivery of such Security to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 3.01 by mailing checks for the amount payable to the Holders of such Securities entitled thereto as they shall appear in the Register; provided, however, that all payments shall be subject to Section 3.01(a) and payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or Securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (1) such Securities shall cease to be outstanding, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Trustee or Paying Agent, and (2) all other rights of the Holders of such Securities shall terminate, other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Securities.
(f) No Securities may be repurchased at the option of Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded on or prior to such date.
(g) The Company will publicly announce the results of an Offer to Purchase on or as soon as possible after the date of purchase.
(h) The Company will comply with the provisions of Rule 13e-4, Rule 14e-l and any other tender offer rules under the Exchange Act that may be applicable; and otherwise comply with all applicable federal and state securities laws.
Appears in 1 contract
Samples: Indenture (E Trade Financial Corp)
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, then each holder of Series A Preference Shares Holder shall have the right right, at such Holder’s option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holderHolder’s Series A Preference Shares. Upon such repurchaseNotes, or any portion thereof that is an integral multiple of $1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company will pay or deliver, that is not less than 20 Business Days and not more than 35 Business Days after the date of the Fundamental Change Notice (as applicable, defined below) at such holder’s election, either (i) cash in an amount a repurchase price equal to 101100% of the Stated Value of such Series A Preference Shares plus the accruedprincipal amount thereof, but unpaid, Dividends on such shares (other than together with any such Regular Dividends included in such Stated Value) accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (unless the Fundamental Change Repurchase Date is between a Regular Record Date and the Interest Payment Date to which it relates, in which case the Company will pay the full interest amount payable on such Interest Payment Date to the record holder as of such Regular Record Date) (the “Fundamental Change Repurchase Price”). Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Paying Agent by a Holder of a duly completed Purchase Notice (the “Fundamental Change Repurchase Notice”) in the form set forth in the Note or, if the Notes are held in global form, a notice that complies with the Applicable Procedures, prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; or and
(ii) delivery or book-entry transfer of the amount Notes (together with all necessary endorsements) to the Paying Agent at any time after delivery of cash and/or other assets such holder would have received had such holder, immediately the Fundamental Change Repurchase Notice and prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, at the Corporate Trust Office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in Change Repurchase Price therefor; provided that such Fundamental Change as a holder Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Common SharesNotes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Date occurs on Notice must comply with the Applicable Procedures. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or after written notice of withdrawal thereof in accordance with the Record Date provisions of subsection (c) of this Section 4.01. Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a Dividend new Note or Notes, containing identical terms and on conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the immediately following Dividend Payment Date and Dividends have been declared for such Dividend Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that the Company will in no event fix a Repurchase Date that is on or 15th calendar day after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside the full amount of Dividends due on such Dividend Payment Date. No later than the effective date of the occurrence of a Fundamental Change, the Company shall send notice (in the manner set forth in Section 11) provide to the holders all Holders of record of Series A Preference Shares stating the Notes and the Trustee and Paying Agent a written notice (1the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof. Each Fundamental Change Notice shall specify (if applicable):
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise its repurchase rights under Section 4.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has occurred, (2) that all Series A Preference Shares tendered been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Repurchase Date”), which will be specified in such notice and must be a Business Day terms of the Company’s choosing Indenture;
(ix) that is no earlier than 30, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares Holder must follow in order for their Series A Preference Shares to be repurchased, including the place or places where certificates for such shares are to be surrendered for payment of the exercise its repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than right by the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date;
(x) that the Holder has the right to withdraw any Notes tendered for repurchase prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(xi) the procedures the Holder must follow to require the Company to purchase its Notes under Section 4.01. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by a written notice of withdrawal delivered to the Paying Agent at any time prior to the Close of Business on the Business Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), specifying:
(i) the principal amount of the withdrawn Notes;
(ii) if Certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the notice must comply with the Applicable Procedures.
(d) On or prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 7.05 of the Base Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds by the Paying Agent, payment for Notes properly surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly on or after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that all payments shall be subject to Section 4.01(a) and payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Paying Agent holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased on the Fundamental Change Repurchase Date, then: (i) such Notes shall cease to be outstanding and interest shall cease to accrue on such Notes (whether or not book-entry transfer of the Notes is made or whether or not the Note is delivered or transferred to the Paying Agent), and (ii) all other rights of the Holders of such Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price and previously accrued and unpaid interest upon delivery or transfer of the Notes.
(f) No Notes may be repurchased at the option of Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Fundamental Change Repurchase Price of the Notes.
(g) In connection with any repurchase upon the occurrence of a Fundamental Change, to the extent required by applicable law, the Company shall:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; and
(ii) otherwise comply with all federal and state securities laws as necessary to effect a repurchase of Notes by the Company at the option of such Holder.
Appears in 1 contract
Repurchase at the Option of the Holder Upon a Fundamental Change. Upon the occurrence of (a) If a Fundamental ChangeChange occurs at any time, then each holder of Series A Preference Shares Holder shall have the right right, at such Holder’s option, to require the Company to repurchase, subject to compliance with Section 42A of the Companies Xxx 0000 of Bermuda, by irrevocable, written notice to the Company, any or repurchase all of such holderHolder’s Series A Preference Shares. Upon such repurchaseSecurities or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company will pay or deliver, as applicable, that is not less than 20 calendar days and not more than 35 calendar days after the date of the Fundamental Change Repurchase Right Notice at such holder’s election, either (i) cash in an amount a repurchase price equal to 101100% of the Stated Value of such Series A Preference Shares plus the accruedprincipal amount thereof, but unpaid, Dividends on such shares (other than any such Regular Dividends included in such Stated Value) together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date; or Date (iithe “Fundamental Change Repurchase Price”) the amount of cash and/or other assets such holder would have received had such holder, immediately prior to such Fundamental Change, converted such Series A Preference Shares and, if applicable, been entitled to participate in unless such Fundamental Change as a holder of Common Shares; provided, however, that if the Repurchase Date occurs on or falls after the a Regular Record Date for a Dividend and on or before prior to the immediately following Dividend Payment Date and Dividends have been declared for such Dividend corresponding Interest Payment Date, then (x) on such Dividend Payment Date, such Dividend will be paid on the Series A Preference Shares notwithstanding any repurchase of Series A Preference Shares pursuant to this Section 8(c); and (y) the amount of such Dividend, if a Regular Dividend, will not be included in the sum in clause (i) above; provided, further, that which case the Company will in no event fix a Repurchase Date that is on or after the Record Date for a Dividend and on or before the immediately following Dividend Payment Date unless the Company shall have declared and set aside pay the full amount of Dividends due accrued and unpaid interest payable on such Dividend Interest Payment Date to the Holder of record at 5:00 p.m., New York City time, on the corresponding Regular Record Date. No later than Repurchases of Securities under this Section 11.01 shall be made, at the effective date option of the occurrence Holder thereof, upon:
(i) if the Securities are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a Fundamental Change, the Company shall send duly completed notice (in the manner set forth in Section 11) to the holders of record of Series A Preference Shares stating (1) that a Fundamental Change has occurred, (2) that all Series A Preference Shares tendered in accordance with this Series A Certificate will be repurchased on the repurchase date (the “Fundamental Change Repurchase DateNotice”), which will be specified ) in such notice and must be a Business Day the form set forth on the reverse of the Company’s choosing Security or, if the Securities are held in global form, a notice that is no earlier than 30complies with the Applicable Procedures, nor later than 60 calendar days after the date such notice is sent and (3) the procedures that holders of the Series A Preference Shares must follow in order for their Series A Preference Shares prior to be repurchased5:00 p.m., including the place or places where certificates for such shares are to be surrendered for payment of the repurchase price. Any notice mailed as provided in this subsection shall be conclusively presumed to have been duly givenNew York City time, whether or not the holder receives such notice. To tender any Series A Preference Shares for repurchase pursuant to this Section 8(c), the holder of such Series A Preference Shares must tender such shares to the Company no later than the Close of Business on the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date.; and
(ii) delivery or book-entry transfer of the Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 11.01 only if the Security so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Securities to be delivered for repurchase;
(B) the portion of the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C) that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 11.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 11.01. Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge,
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Samples: Indenture (Virgin Media Inc.)
